Rehabilitative Statutes In Immigration Laws (thoughts)

[scribbles]

I think a big source of problems in the US immigration law is that it's sort of "incomplete". In typical criminal law or immigration laws of most countries, there are always rehabilitative statutes for all offenses barring perhaps murder. In the US immigration law, it has been mostly left to the courts to decipher the Congress' intention for example with the term "conviction". Typically a conviction ceases to exist for example upon expungement, which is the rehabilitative nature of the common criminal law. However since the Congress hasn't specifically mentioned this in the INA, the courts have taken the stance of judging in more restrictive sense since it hasn't been specifically approved.

This in some ways is questionable, since one could question whether it was in the intention of the Congress to abolish the common conventions relating to the rehabilitative statutes with the immigration law in mind. The contrived reasonings of the courts in this area often reek of a specific agenda rather than reaching an objective and fair interpretation of the law. In this sense the application of the law has often defied the common sense interpretation of it. Also the courts' stance has been contrary to the findings of the Supreme Court where the deportation is likened to an exile of the US citizen, which is one of the most extreme forms of punishment. In that light the Supreme Court has been forced to judge in favor of the defendant where possible to avoid such judgement.

Likewise the courts have chosen to not respect any foreign rehabilitative measures like foreign expungements or typically pardons for crimes committed outside of the US. The US federal law is typically applied to the charges being committed and the crime is evaluated in this way as if it had happened on the US soil. This is faulty and fruitless like some of the more recent rulings of the courts have declared. The goal of the immigration law can't be that of equal judgement of all people, since the nature of the laws either within the US, or outside of it are not such. How could for example a substance use or prostitution be considered a crime in the eyes of the immigration if it wasn't a crime where it happened like for example in Amsterdam? Likewise a person behaves according to the context of his environment and may defend his case with the applicable local law in mind. Due to this for example many offenses committed in one state and successfully defended as misdemeanors suddenly become aggravated felonies when a completely different federal law is applied to them. Likewise with a foreign conviction in mind this is even more of a stretch, as a foreign person could not possibly consider the later implications of applying the US federal standards on his actions. Due to this, it is fruitless to try to find a common ground, and the crimes should be treated in relation to how they have been judged in the jurisdiction where they occurred. With the exception of jurisdictions that have themselves been challenged or found illegal such as Nazi Germany.

In addition mistakes do happen in criminal matters so it should be reasonable to allow some form of relief for any offense at some point in time. Right now the US immigration law deals with finality and absolutes for example barring a person from the US permanently with no hope for relief other than the change in the law itself. This is why it's important to respect measures such as an expungement, and in addition to create rehabilitative statutes of some sort to the immigration law itself.

As an example of laws outside of the US, we can look at Canada since it's fairly close to the US and culturally very similar. Canada has a rehabilitative statute which allows discretionary relief after 5 years, and allows automatic rehabilitation after 10 years of the offense. The period is longer for particularly serious crimes, but the seriousness of the crime is determined by the actual sentence imposed, as it's a more correct measure of the seriousness of the act in the correct and possibly foreign context. This is very reasonable and shouldn't really be questionable for anyone, considering the humanitarian and other implications deportation and inadmissibility to the US can cause. People sometimes make mistakes and it is not reasonable to treat ones indiscretion in such a harsh terms, especially when considering the Supreme Courts analogy of deportation being the equivalent of exile of an US citizen. Would an US citizen be exiled based on a substance offense, unless it was extremely serious in nature (talking about hundreds of kilos involved and organized crime here)?

I liked how the Comprehensive Immigration Reform Act was looking around 2002. It actually granted relief for many things, although an all encompassing rehabilitation was still missing. Along the years and coming 2007 it has become very minimal in nature and more interested of legalizing the illegal immigrants via a guest worker program rather than dealing with the inherent unfairness and harshness of the other inadmissibility concequences. This, I find quite sad.

Perhaps with the democrats in charge and if another democrat President is elected, more reforms could be expected. It would be nice to have reasonable moderation after decades of ever harsher and unreasonable laws.

[scribbles]

I think a big source of problems in the US immigration law is that it's sort of "incomplete". In typical criminal law or immigration laws of most countries, there are always rehabilitative statutes for all offenses barring perhaps murder. In the US immigration law, it has been mostly left to the courts to decipher the Congress' intention for example with the term "conviction". Typically a conviction ceases to exist for example upon expungement, which is the rehabilitative nature of the common criminal law. However since the Congress hasn't specifically mentioned this in the INA, the courts have taken the stance of judging in more restrictive sense since it hasn't been specifically approved.

This in some ways is questionable, since one could question whether it was in the intention of the Congress to abolish the common conventions relating to the rehabilitative statutes with the immigration law in mind. The contrived reasonings of the courts in this area often reek of a specific agenda rather than reaching an objective and fair interpretation of the law. In this sense the application of the law has often defied the common sense interpretation of it. Also the courts' stance has been contrary to the findings of the Supreme Court where the deportation is likened to an exile of the US citizen, which is one of the most extreme forms of punishment. In that light the Supreme Court has been forced to judge in favor of the defendant where possible to avoid such judgement.

Likewise the courts have chosen to not respect any foreign rehabilitative measures like foreign expungements or typically pardons for crimes committed outside of the US. The US federal law is typically applied to the charges being committed and the crime is evaluated in this way as if it had happened on the US soil. This is faulty and fruitless like some of the more recent rulings of the courts have declared. The goal of the immigration law can't be that of equal judgement of all people, since the nature of the laws either within the US, or outside of it are not such. How could for example a substance use or prostitution be considered a crime in the eyes of the immigration if it wasn't a crime where it happened like for example in Amsterdam? Likewise a person behaves according to the context of his environment and may defend his case with the applicable local law in mind. Due to this for example many offenses committed in one state and successfully defended as misdemeanors suddenly become aggravated felonies when a completely different federal law is applied to them. Likewise with a foreign conviction in mind this is even more of a stretch, as a foreign person could not possibly consider the later implications of applying the US federal standards on his actions. Due to this, it is fruitless to try to find a common ground, and the crimes should be treated in relation to how they have been judged in the jurisdiction where they occurred. With the exception of jurisdictions that have themselves been challenged or found illegal such as Nazi Germany.

In addition mistakes do happen in criminal matters so it should be reasonable to allow some form of relief for any offense at some point in time. Right now the US immigration law deals with finality and absolutes for example barring a person from the US permanently with no hope for relief other than the change in the law itself. This is why it's important to respect measures such as an expungement, and in addition to create rehabilitative statutes of some sort to the immigration law itself.

As an example of laws outside of the US, we can look at Canada since it's fairly close to the US and culturally very similar. Canada has a rehabilitative statute which allows discretionary relief after 5 years, and allows automatic rehabilitation after 10 years of the offense. The period is longer for particularly serious crimes, but the seriousness of the crime is determined by the actual sentence imposed, as it's a more correct measure of the seriousness of the act in the correct and possibly foreign context. This is very reasonable and shouldn't really be questionable for anyone, considering the humanitarian and other implications deportation and inadmissibility to the US can cause. People sometimes make mistakes and it is not reasonable to treat ones indiscretion in such a harsh terms, especially when considering the Supreme Courts analogy of deportation being the equivalent of exile of an US citizen. Would an US citizen be exiled based on a substance offense, unless it was extremely serious in nature (talking about hundreds of kilos involved and organized crime here)?

I liked how the Comprehensive Immigration Reform Act was looking around 2002. It actually granted relief for many things, although an all encompassing rehabilitation was still missing. Along the years and coming 2007 it has become very minimal in nature and more interested of legalizing the illegal immigrants via a guest worker program rather than dealing with the inherent unfairness and harshness of the other inadmissibility concequences. This, I find quite sad.

Perhaps with the democrats in charge and if another democrat President is elected, more reforms could be expected. It would be nice to have reasonable moderation after decades of ever harsher and unreasonable laws.

[Someone12]

let all illegals 'rehabilitate' back in their own country...for about 10-20 years....

[scribbles]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Someone12:
let all illegals 'rehabilitate' back in their own country...for about 10-20 years.... </div></BLOCKQUOTE>

That is actually a quite reasonable proposition. Different people might have differing opinions about the exact length of the rehabilitation period, but I'm happy that you support the principle.

[Houston]

This is a good post. While some of the information is not accurate, the post reflects the crude reality of immigration law when criminal issues are present.

Under 212(h), discretionary relief is available 15 years after the commission of the disqualifying offense, regardless of any issues of hardship if the alien is rehabilitated. The relief is currently not available, and should remain unavailable, to those convicted of murder, rape and other very grave offenses.

However, the real problem is the lack of proper balance that exist between criminal and immigration law resulting from numerous amendments, patches and additions that have unintentionally created serious issues of applicability. Criminal courts exist to consider each and every offense according to the criminal code and rules of criminal procedure established to resolve criminal matters in the best interest of society. The authority of a criminal court is primordial and incontestable when it comes to criminal issues however, considerations and determinations of the criminal courts are often discarded or ignored by immigration law. Under INA, a disqualifying misdemeanor and a disqualifying felony will be treated in a similar way when considering admissibility.

One may think that this is completely irrelevant, but it raises issues worth mentioning. When it comes to mixed families, a minor conviction and its real implications under immigration law could result in forcing the U.S. citizen relatives to chose family or country. The Constitution protects against cruel and unusual punishment and exile is considered as such however, immigration law in all practicality often imposes exile upon citizens who are not guilty of any criminal offense and are not even prosecuted or tried as criminals.

It's somewhat strange that immigration law considers foreign convictions valid, regardless of the integrity of the process, but declines to recognize foreign rehabilitation statutes questioning the "fairness and integrity" of these provisions. But note how foreign convictions of U.S. citizens are not considered when applying the "felon in possession" regulations.

Some immigration statutes completely ignore rehabilitation, others ignore the fundamental presumption of innocence in the criminal context. Even in the world of civil litigation, it's the plaintiff who bears the burden of proof, but immigration law often ignores this principle. A person who used a controlled substance once, 30 years ago, is inadmissible even in the absence of a conviction, while a person convicted of assault is admissible the day he or she is released from custody.

There's no balance between the real implications to society of the criminal or illegal activity and the actual immigration consequences resulting from such conduct. Immigration law fails to consider reality, not only from the criminal point of view, but also from a humane, family-oriented perspective.

Congress now has a unique opportunity to change all this and design effective, enforceable and comprehensive law. The issues are many, and the topic controversial but the talent in Congress is abundant and it's trajectory impeccable, there's no reason to expect inaction given the great implications of the matter at hand. Let's just see what happens.

[scribbles]

Thanks for the good reply Houston!

I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen.

[scribbles]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
Thanks for the good reply Houston!

I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen. </div></BLOCKQUOTE>

I have to correct myself there, the 15 year rule with aggravated felonies already exists and is not new in the Immigration Reform Act of 2006.

[Kollerkrot]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
Thanks for the good reply Houston!

I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen. </div></BLOCKQUOTE>

I have to correct myself there, the 15 year rule with aggravated felonies already exists and is not new in the Immigration Reform Act of 2006. </div></BLOCKQUOTE>

&gt;&gt; I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible. &lt;&lt;

How come it is not compromising the US sovereignity when accepting foreign convictions. It just doesn't make sense, that the INA would have the power to condemn someone for the rest of their life, when all the world would accept an expungement. I shall view this as most arrogant and inhumane!

[Someone12]

who gives a shred of sauerkraut what you 'view' as most arrogant and inhumane....

[Kollerkrot]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Someone12:
who gives a shred of sauerkraut what you 'view' as most arrogant and inhumane.... </div></BLOCKQUOTE>

....even Gods fight to stupidity to no avail - Friedrich Schiller!!

[scribbles]

I should note that the 15 year rule with aggravated felonies applies only to foreign convictions. So with convictions that happened in the US, there is no relief available. But although the crime ceases being an aggravated felony, it doesn't necessarily remove all or any of the immigration consequences.

I wouldn't have so much of a problem with not accepting the expungements as long as there was a comprehensive rehabilitation statute to replace this notion. So if they're not willing to consider rehabilitative measures of other jurisdictions, at least provide an alternative!

There is a conflict with both State and foreign courts when applying the immigration law. A person might be facing at most misdemeanor charges in either court, and it would not be in his interest to for example spend money on his defense when that could cost thousands, and accepting the sentence might at most be a fine of a few hundred dollars. Thus a person might just accept the sentence with no serious regard to it.

Then the immigration courts suddenly determine "what if" this was prosecuted under the Federal Law. The whole notion of "what if" is very questionable, as the likely sentence is much higher than in State or foreign courts. So his misdemeanor might suddenly become a felony, and he will never have the chance to defend himself with appropriate seriousness. So in effect, the "what if" notion doesn't take into account that had it happened in the Federal Court, the person would've defended himself appropriately with the applicable laws and sentences in mind.

And with for example substance offenses, any substance offense that becomes a felony under Federal Law, even if it was a misdemeanor in the State Court, is now Aggravated Felony in the immigration law. This is considered a "particularly serious offense". Thus it is categorized together with crimes such as murder, and will forever prohibit the person from immigrating to the US, and if the person is currently in the US, will cause him to be deported regardless of ANY possible hardship it might cause to his family, and even if the person was an asylum seeker and might be tortured or killed once returned to his home country. Compare this to the fact that the person was in reality only convicted of a misdemeanor!

I understand that no law can be perfect, mistakes do happen and these issues are often complex. But this should be recognized by the immigration and eventual relief should be made available. Also deportation should be reserved only for truly grave offenses such a murder.

None of these issues are being addressed by the Comprehensive Immigration Reform Act!!!

[scribbles]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:

How come it is not compromising the US sovereignity when accepting foreign convictions. It just doesn't make sense, that the INA would have the power to condemn someone for the rest of their life, when all the world would accept an expungement. I shall view this as most arrogant and inhumane! </div></BLOCKQUOTE>

Thus far US is the only country I've seen that has such an immigration law. Every other country has both individual discretion and rehabilitative statutes available. Also certain countries (like Japan for example) won't recognize foreign convictions at all.

[scribbles]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:

But wasn't there just recently precedence set in the case of Lopez v. Gonza*** before the Supreme Court? </div></BLOCKQUOTE>

His crime was only a misdemeanor when the Federal Law was applied, not a felony as usually required for Aggravated Felony definition. Also he only aided someone else in possession of cocaine without selling it to them personally. Thus, the person basically won by technicality, because technically speaking "aiding" someone else in possession is not the same as trafficking, which involves commercial dealing.

In my opinion he clearly had a lawyer defending him that was aware of the immigration consequences, and appropriately defended his crime by spinning the terminology used in such a way that it could be won by technicality.

He was also already a permanent resident, so there is some additional relief available to them. In this case, a cancellation of deportation.

I personally don't think this is all that great however, because I don't think people should have to resort to winning by technicality, but the law itself should be fair and common sense. This only helps in such a way that lawyers defending their clients inside the US are able to spin their convictions to such terms that they don't serve as grounds for deportability.

This likely won't help with for example foreign convictions since obviously they were not defended with technicalities of the US Federal and immigration law in mind.

[Kollerkrot]

But wasn't there just recently precedence set in the case of Lopez vs. Gonzales before the Supreme Court?

I know of a case that was prosecuted in Europe. A true such misdemeanor substance case, that ended up in a fine of approx. $1000.00. The laws of Europe are different – no doubt about it and can convict on solely statements. This conviction and fine, however, was based on only a statement in which the later convicted stated that he did certain things in the past. No substance (except in words) was ever involved. Well, to make my point: if the USCIS considers cases as if they would have happened here and treats them "what if" this would have happened in a federal jurisdiction", logic tell me that this particular conviction would have never made to the courts to begin with, because it was based on solely a statement.

I am very interested in the outcome of that one, even today, before any rehabilitative measures would be enacted.

[scribbles]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:
But wasn't there just recently precedence set in the case of Lopez vs. Gonzales before the Supreme Court?

I know of a case that was prosecuted in Europe. A true such misdemeanor substance case, that ended up in a fine of approx. $1000.00. The laws of Europe are different – no doubt about it and can convict on solely statements. This conviction and fine, however, was based on only a statement in which the later convicted stated that he did certain things in the past. No substance (except in words) was ever involved. Well, to make my point: if the USCIS considers cases as if they would have happened here and treats them "what if" this would have happened in a federal jurisdiction", logic tell me that this particular conviction would have never made to the courts to begin with, because it was based on solely a statement.

I am very interested in the outcome of that one, even today, before any rehabilitative measures would be enacted. </div></BLOCKQUOTE>

That sounds very interesting.

I know of a case in Europe where a person was held in pretrial interrogations due to another persons allegations against him. The police had the authority to keep him jailed for up to 3 months just for interrogation! The crime he was accused of would at most give a penalty of a probationary sentence and a small fine. Thus it was more beneficial for the person to simply confess in order to be released immediately and to pay a fine in order of about $200. The fine being so small, it wasn't in his interest to even hire a lawyer for his defense in the court since that would've cost him around $1000. The person asserts that he was actually innocent of the accused crime, but would have lost his job and livelihood had he remained in pretrial imprisonment for up to 3 months (pretrial jailing of this duration is common in his country). In the end he asserted his innocence for one week, but then gave the confession in order to be released.

The courts considered his confession reliable and convicted him of the crime. The consequences were negligible in his home country, and the record of conviction was to be expunged in 5 years automatically.

When applied to the US law, the case becomes quite complex because you have his confession from the pretrial investigation. Thus it's likely seen that he would've also been convicted in the Federal Court due to the confession. However, does this satisfy the "what if" determination to its full extent? No, because the procedures in the US would've been completely different to begin with, and had he faced Federal charges with substantial penalties, the person likely wouldn't have confessed to a crime he claims he didn't commit.

How do you then satisfy the "what if" in appropriate way? It becomes almost impossible considering the multitude of different jurisdictions and their nuances.